The domain name at issue is "WINESDIRECT.COM", registered with Network Solutions
Inc. ("NSI").

PANELIST

The Panelist James P. Buchele, certifies that he has acted independently
and impartially and to the best of his knowledge has no known conflict in
serving as an Arbitrator in this proceeding.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum ("The
Forum") electronically on 06/26/2000; The Forum received a hard copy of the
Complaint on 06/26/2000.

On 06/28, NSI confirmed by e-mail to The Forum that the domain name "WINESDIRECT.COM"
is registered with NSI and that the Respondent is the current registrant of
the name. NSI has verified that Respondent is bound by the Network Service
Agreement Version 5.0 and has thereby agreed to resolve domain-name disputes
brought by third parties in accordance with ICANNís UDRP.

On 06/26/2000, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of 07/17/2000
by which Respondent could file a Response to the Complaint, was transmitted
to Respondent via email, post and fax, and to all entities and persons listed
on Respondentís registration as technical, administrative and billing contacts
by email.

On August 11, 2000, pursuant to Complainantís request to have the dispute
decided by a Single Member panel, The Forum appointed James P. Buchele as
Panelist.

RELIEF SOUGHT

The Complainant requests that the domain name be transferred from the Respondent
to the Complainant.

PARTIESí CONTENTIONS

A. Complainant

The Complainant is a Connecticut corporation and is publisher of a bi-monthly
consumer report called "Wines Direct" with a circulation of 12,000. Complainant
owns a registered trademark for "WINES DIRECT" first issued by the U.S. Patent
and Trademark Office in 1986 for "publications, namely a newsletter pertaining
to wine".

In November 1999 Complainant attempted to register "Wines Direct" as an Internet
site and learned that Respondent had registered the site on May 22, 1996.
It is Complainants position that the domain name infringes, as it is identical
to its trademark; that Respondent has no legitimate rights or interest in
the name "winesdirect.com" and that Respondent registered the name in bad
faith.

B. Respondent

The Respondent is a corporation owned by the Giumarra family from Edison,
California. They have been engaged in growing grapes, making and marketing
wine since the 1940ís. Respondent claims that in 1996 Giumarra considered
re-entering the retail wine business and developed an extensive marketing
plan for direct sales to consumers that they named "Wines Direct". The marketing
plan included developing a web site that they registered as "winesdirect.com".
It is Respondents position that directly marketing wines to consumers does
not infringe upon Complainants trademark which is for publishing a newsletter
about wine; that they have a legitimate interest in the domain name and even
though they have not developed the website; they have developed a plan which
shows "demonstrable preparations" for use of the domain name and that they
did not acquire or use the name in bad faith.

FINDINGS AND CONCLUSIONS

Paragraph 4(a) of the ICANN Uniform Domain Name Dispute Policy ("Policy")
directs that the complainant must prove each of the following three elements
to support a claim that a domain name should be cancelled or transferred:

(1) the domain name registered by the Respondent is identical or confusingly
similar to a trademark or service mark in which the Complainant has rights;

(2) the Respondent has no rights or legitimate interests in respect
of the domain name; and

(3) the domain name has been registered and is being used in bad faith.

Identical and/or Confusingly Similar

There is no dispute that the domain name "winesdirect.com" is identical
to the Complainants trademark Wines Direct. Of course, the presence of the
domain ".com" in the domain name is of no consequence in this case. The
same applies to the fact that the domain name is displayed without a space
between the words and in lower-case letters as opposed to the trademark
that is displayed in upper-case letters as two words. The identity test
of paragraph 4(a)(i) of the ICANN policy has been satisfied. Since the complainant
must, under paragraph 4(a)(i), prove only that the domain name and trademark
are identical or confusingly similar, the issue of confusing similarity
need not be addressed.

Rights or Legitimate Interests

Paragraph 4(a)(ii) of the ICANN policy raises the issue whether the respondent
has any rights or legitimate interests in respect of the domain name. Paragraph
4(c) sets out three examples of circumstances that demonstrate the existence
of such rights or legitimate interests of the respondent in the domainís
name. These examples are not exhaustive of the situations that, if proven,
shall demonstrate a Respondentís rights or legitimate interests to the domain
name for the purposes of paragraph 4(a)(ii). The Complainant carries the
burden to prove that Respondent has no rights or legitimate interests.

The first example found at paragraph 4(c) (i) appears to be close to the
present case. It contemplates the fact that a Respondent, before any notice
to him of the dispute, has used or made demonstrable preparations to use,
the domain name or a name corresponding to the domain name in connection
with a bona fide offering of goods or services.

In the present case, the evidence supports the finding that,
over three years before any notice of Complainantís interest
in the web site "winesdirect.com" to Respondent, Giumarra
had demonstrably prepared to use the domain name "winesdirect.com"
in connection with a bona fide offering of goods or services.
Respondent is well established in the wine business and presents
credible documentation that obtaining the domain name was
a part of a legitimate business plan. These facts distinguish
this case from the cyber squatting cases cited by Complainant.

One could argue that, from May 1996 until notice of the dispute
in early 2000, the preparation time to actually begin use
of the domain name is too long to maintain a legitimate interest.
This fact in itself is not sufficient to defeat Respondents
rights or legitimate interests in the domain name. The issue
of rights to and legitimate interests in the domain name must
be determined, as it existed before any notice to the Respondent
of the dispute. That time frame is the time from when the
Respondent registered the domain name in May 1996 and when
the Complainant notified Respondent of its position that use
of the domain name "winesdirect.com" infringed on its trademark.
The Complainant has adduced no evidence to contradict that
Respondent registered the domain name as a part of a direct
sales marketing plan and that plans to begin use were deferred
for legitimate business reasons.

The Respondent having demonstrated its rights to and legitimate
interests in the contested domain name and the Complainant
has failed to discharge its burden to prove the second essential
element of the complaint.

Bad Faith Registration and Use

Since the Complainant has failed to prove the second essential
element of the complaint, the issue of bad faith registration
and use need not be specifically addressed. Nevertheless,
I find it expedient to summarily dispose of that issue as
well.

Paragraph 4(a)(iii) raises the issue whether the domain name
has been registered and is being used in bad faith. Paragraph
4(b) supplies a non-exhaustive list of four examples of situations
that, if any of them is found by the Arbitrator to be present,
shall be evidence of the registration and use of a domain
name in bad faith. None of these four enumerated factors are
present in this case, but Complainant contends that Respondents
bad faith is demonstrated by its lack of use and because it
renewed its registration after being notified of Complainants
claim.

The lack of use argument was addressed above and for the
same reasons stated, does not constitute bad faith. Respondents
renewal was not a "race to register" a domain name to gain
advantage in this proceeding. The renewal only maintained
the status quo, which Respondent is entitled to do rather
than relinquish its position to Complainant. Renewal is not
evidence of bad faith.

Finally, Complainant states that Respondents proposed use
infringes upon Complainants trademark. The rule prohibiting
infringement would be applicable if the goods and services
are similar to those covered by the trademark. Here, Complainants
mark is for "publications, namely a newsletter pertaining
to wine". "Wines Direct" is a publication of The Wine Exchange,
Inc which is an affiliate of an international organization
that analyzes, tastes and produces market research on high
quality wines. The newsletter provides in depth articles on
the various aspects of wine making and marketing of high quality
wines. Its focus is to provide information about high quality
wines to the wine industry and sophisticated consumers. On
the other hand, Respondents business plan is a direct marketing
of wine to average consumers. The plan does not include providing
comparable information to consumers and focuses upon a broader
market than Complainants publication. Respondentís use is
dissimilar from the Complainants trademark.

DECISION

For the reasons set forth above, the it is my decision that
Complainant has proved only one of the three elements set
forth in paragraph 4(a) of the ICANN policy, and therefore
the relief sought by Complainant should be DENIED.